Turley on the benefits and drawbacks of special counsels

Trump attorney wants separate special prosecutor to investigate possible conflicts of interest; legal expert gives his take on 'The Story.'

This is a rush transcript from "The Story," December 12, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, HOST: Thank you, Bret. We'll see you in a little bit. Breaking tonight, 59 minutes and counting now before the polls close in Alabama. And then, we will have a story to tell, folks. We are about to get the first results so what message are Alabama voters about to send to Washington? And to the country tonight? About what they care about most. Good evening, everybody, I'm Martha MacCallum.

Conservative fire brand Roy Moore -- you just saw him ride off on his horse sassy there -- showing up today to vote as he always does on horseback. He defied President Trump earlier in this race and got a boost from Steve Bannon. He won the primary. And then, the bombshell allegations of sexual misconduct with teenage girls dropped last month. Will conservative voters stick with him tonight as Democrats rally behind Doug Jones? A candidate that President Trump has called pro-abortion, weak on crime, and a puppet of the left. So, it is a race that should have been a runaway in a deep red state that President Trump won by 28 points last November. It quickly turned into one of the ugliest races that we have seen in quite a while.

(BEGIN VIDEO CLIPS)

ROY MOORE, REPUBLICAN SENATE CANDIDATE: This is absolutely false. I never did what she said I did.

UNIDENTIFIED FEMALE: He touched me over my clothing, what was left of it. And he tried to get me to touch him as well.

STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: This whole thing was a setup. This whole thing was weaponized, right? You know that. We say no more to discriminating against those that are the least fortunate among us. It's just time, folks, that we say no more.

UNIDENTIFIED FEMALE: This is the guy that actually received votes and won --

UNIDENTIFIED FEMALE: The majority of the votes.

UNIDENTIFIED FEMALE: To me, this should be the scarier part.

UNIDENTIFIED FEMALE: They're not calling for Al Franken to step down by the way. Did you notice that? The guy is guilty. He's got a picture. He's admitted it. And yet, Mitch McConnell, Paul Ryan, Ted Cruz, they're not calling for him to step down.

JIMMY KIMMEL, T.V. HOST: Roy Moore lashed out at me. He wrote, "Jimmy Kimmel if you want to mock our Christian values, come down here to Alabama and do it man to man." There is no one I would love to fight more than you.

PRESIDENT DONALD TRUMP: So, get out and vote for Roy Moore. Do it. Do it.

(END VIDEO CLIPS)

MACCALLUM: Quite a race, right? Fox team coverage inside both candidates' election night headquarters. Doug McKelway is live in Birmingham with the Jones camp tonight. But we begin with Peter Doocy at Moore headquarters in Montgomery. Hi, Peter.

PETER DOOCY, FOX NEWS CHANNEL REPORTER: Hi, Martha. In the time since Judge Moore rode his horse to go vote, he's been praying with family, making phone calls and working on his speech tonight. A strategist of the campaign says that this has been a normal election day at Moore headquarters. Lots of coffee, some antacids, and staring at the clock along with a lot of people calling and offering their best suggestions about how they could win.

But the strategists also shared this, he says, "Turnout has been higher than the runoff across the board, but we are not expecting it to hit gubernatorial levels. Our team is pushing through the tape. So far, our volunteers have delivered 51,231 text messages and 291,000 phone calls, and we're not stopping until 7:01 p.m." If Moore does win, expect the people who have been trying the hardest to help him win give thanks to God to Judge Moore and to President Trump. But if he loses, expect the blame here to be pointed at Mitch McConnell.

And to that end, Fox has been told by a Senate source that McConnell wants all 52 Republican senators to sit down behind closed doors if Roy Moore wins to figure out conference messaging with regard to Moore and to discuss certain options, like whether or not he should be referred to the Ethics Committee. Remember, Moore's campaign has been an assault on the establishment, and McConnell has been the most frequent target. The press has been a target though, too. And at tonight's event in Montgomery, The Washington Post was denied press credentials a few days ago. They tried to show up to come in, and they were denied entry. A few hours ago, Judge Moore told Alabama voters to vote their conscience and tonight we will know if an Alabama voter, voting their conscience means that they're voting for Roy Moore. Martha?

MACCALLUM: Super tight race and no indications yet. Thank you very much, Peter. Doug McKelway is standing by at Doug Jones headquarters tonight with the story from there. Hey, Doug.

DOUG MCKELWAY, FOX NEWS CHANNEL CORRESPONDENT: Hi, Martha. Despite the tremendous national attention paid to this race and its importance in the balance of power in the Senate, it looks like the turnout across the state of Alabama is relatively light, certainly not what we would expect. The secretary of state of the state of Alabama had predicted just in recent days that we'd see 25 percent of registered voters turn out for this election. A bit higher than what he had predicted in the last August where he said it was going to be 18 percent.

And another factor which we should all be paying close attention to is that the fact that the polls have been just all over the place. We saw one 19- point swing from two different reliable polls issued on the same day this week. It throws a big question mark into the results. And it suggests that, perhaps, there's a hidden factor which was conveyed in a recent tweet where somebody said two things that Alabama voters really like: New York Feminist Attorneys like Gloria Allred and the New York media.

We don't know whether or not that tweet is going to be accurate. We will find out later tonight. But if Doug Jones is to become the first Democrat to win a statewide Senate election in this state in a couple of generations, there are a couple things that he absolutely must do. He has to get a higher than expected turnout of African-American voters out here - - they are roughly 25 percent of the population -- and, he must succeed in suppressing the turnout of Republican women.

Many of whom might be turned off by the allegations affecting Judge Moore. Doug Jones has another liability in this deeply red state. He has the support -- I should say, he has been supporting the Affordable Care Act, he is in favor of LGBT rights, gay marriage, abortion rights, he's in favor the climate change agenda of the Obama administration -- things that don't generally go over well among the majority of Alabama voters.

But on Doug Jones' side, Alabama is hardly representative of the old south that many people outside this state think. It is home to the Marshall Space Flight Center. Four or five international auto manufacturers have made their home here in Alabama -- it suggests progress. And Doug Jones has made a point of asking: do you want to see Roy Moore across the table negotiating with multinational corporations given what he has said. Martha, back to you.

MACCALLUM: Fascinating. Thank you very much, Doug McKelway. So here now, joining me is one of Roy Moore's fiercest defenders. Amy Kremer is Co- Chair of Women for Trump. She's parting the women for Moore rally that was held just days after The Washington Post broke the sexual misconduct allegations against him, and she has been a very vocal supporter. Amy, good evening to you. You just heard probably Doug McKelway's report and really one of the most important elements for Roy Moore tonight is going to be a turnout of conservative women and whether or not they were turned off by these allegations.

AMY KREMER, CO-CHAIR OF WOMEN FOR TRUMP: Right. And I think that they are going to turn out and vote because this state is a Republican state. Donald Trump was elected overwhelmingly here. And he was elected because of the things that women care about: national security, jobs, the economy. Those sorts of things. And President Trump has said that he needs Roy Moore in the Senate to give him support. We've all seen what one vote in the Senate can do with John McCain and the repeal and replace of Obamacare. So, this election is very important. And I think, Martha, it may be a little bit like when President Trump was elected that you may not see the yards and the sticker -- the yard signs and stickers and whatnot, but when people go to the polls, they're going to vote for who they believe is the best for them and their family because that's what matters.

MACCALLUM: And we know that you know, anecdotally, there hasn't been a lot of Roy Moore signs out there. There are indications that perhaps people aren't telling the pollsters that they're going to vote for Roy Moore. You know, just in terms of these allegations, you know, why did you decide, you know, why do you not believe these women? Do you believe that it's a conspiracy against your candidate?

KREMER: First of all, I've never said I don't believe these women. I think it doesn't matter what I believe or you believe or anybody else in the media. I think that this is for the people to decide. The people of Alabama when they go to the polls, they're going to weigh all this information. I can't imagine that there's anybody in this state that is not aware of these allegations. And so, I think it's preposterous to think that these people don't have the knowledge and wherewithal to vote on the things that matter to them. And they're going to have to weigh this with the issues that affect them and their families.

And I certainly think it'll play into it, and maybe some people won't vote for him. But at the end of the day, it doesn't really matter. You know, I wasn't there, I'm not going to say that these women are lying. I don't know. But I certainly question, you know, 40 years later these allegations are coming out. And I mean, there's been stories, you know, the holes have been blown in some of these stories. So, it's just something that voters are going to have to decide at the end of the day.

MACCALLUM: Yes. I mean, you're right. And in fact, a very tough decision because they have to weigh these stories that they've been hearing, and obviously pro-life is a very, you know, popular stance in Alabama. Something that people care about a lot. And that's going to weigh into their decision as much as the allegations, do you think?

KREMER: You know, probably for some people. But, Martha, I don't know. This is a very conservative state, and the social issues do matter to them. Traditional marriage. Pro-life. I'm sure that it's going to play a big part in it. But, to some people, it may not. I don't know. But I do think that Roy Moore is going to win. Like I've said, I think we're going to see some of that Trump effect. At the end of the day, what it comes down to here is that you have a progressive liberal that's going to vote San Francisco, New York values along with Schumer and Pelosi, or you have a candidate that's going to promote and push for President Trump America first agenda. And I think that's what it comes down to, and that's what people have to decide. The resistance movement or America first, make America great again movement.

MACCALLUM: Amy Kremer, thank you very much, Amy. You'll be watching, we'll be watching. We'll see you again to get some numbers very shortly in all of this.

KREMER: Thank you.

MACCALLUM: Thanks for being here tonight. Here now: Charlie Hurt, Washington Times Columnist and Fox News Contributor; and Zac Petkanas, Former DNC Senior Advisor, and Former Hillary Clinton Campaign Aide. Gentlemen, welcome. Good to have both of you with us. Zac, let me start with you. You listened to Amy Kremer, and she's saying, you know, Judge Moore denied these allegations. The women say they're true. When people, you know, sort of, get ready for work every day, and they go live their lives, there are things they care about. Will that outweigh the other issues that are very important to them and the things that they really want to see happen in Washington?

ZAC PETKANAS, FORMER DNC SENIOR ADVISOR AND FORMER HILLARY CLINTON CAMPAIGN AIDE: Look, I think it remains to be seen. I think it's going to be a very close race, and we'll see what happens. Regardless of what Alabamians decide today, the results of this election are going to live with Republicans nationally tomorrow. And so, it's either going to be a Democrat that's going to take a very red seat or it's going to be an accused child molester joining the ranks of Republican senators. They're going to have to decide what to do with him. Are they going to expel him? Are they not going to expel him? If they're not, why not? Are they going to take money from the Republican National Committee which helped fund a campaign for an accused child molester? If they are, why are they going to? And so, this is going to open up a lot of problems that we're going to start seeing.

MACCALLUM: No doubt that will be what Democrats will try to, you know, tar this with. That Roy Moore will become as Brit Hume likes to say: the hood ornament, for, you know, the sexual harassment charges. And that, that could be politically problematic for Republicans, Charlie.

CHARLIE HURT, FOX NEWS CHANNEL CONTRIBUTOR AND COLUMNIST FOR THE WASHINGTON TIMES: Yes, and it will nicely open up the door for Republicans to talk about Bill Clinton molesting an intern in the White House. And the years, the decades that Ted Kennedy served in the United States Senate and his colleague Jerry Stubs represented Massachusetts in the House. And we can just have this sick, gross disgusting conversation for a really long time.

And I don't think Democrats necessarily -- in fact, I'm certain Democrats won't win that fight. But I thought that interview was so interesting that you just had because and she is exactly right. At the end of the day, when you have these -- you have serious allegations, I find them very credible, at least the first ones. Then, have you other allegations that have clearly begun to unravel with the help of people like Gloria Allred.

You don't have a court. You don't have a jury to make a determination. You have an election. And I can't think of a better way to do it. And I think that the good people of Alabama will consider all of this. They will determine who's telling the truth, who's not telling the truth.

And then, weigh, as you were just talking about, those very important issues that they care very, very much about. And when you look at that Fox News poll, the first three things that motivated voters were supporting Trump's agenda, preserving Republican control of the House, and then abortion. On all three of those things, that favors Republicans very, very well. It favors Roy Moore.

MACCALLUM: And you know, in some ways, it does mirror the very controversial presidential election that we had in 2016.

HURT: Absolutely.

MACCALLUM: You know, where people said, you know, not everybody was, you know, in love with the candidate, right? Conservatives. And they said you know what? In the end, it's about the policies. It's about smaller government. It's about stronger defense. It's about, you know, cutting taxes. Those are the things that they care about. So, in the end, you know, that may be what the guiding factor is, despite the fact that this has grabbed so many of the headlines.

PETKANAS: Well, look, I think it's going to be a couple things. I mean, one, Doug Jones is just objectively a very strong candidate -- he's someone who's of a strong prosecutor who took on the KKK. But I also think there are other factors that are going to play into this race. The fact that Alabama is competitive at all -- a state that Donald Trump won by 28 percent. Yes, there are the charges of child molestation, but it's also I think a reflection of Donald Trump and his favorability. We have just from the exit polls here, he's under 50 percent approval rating within Alabama. That is very low for a state like Alabama.

MACCALLUM: Yes. I mean, there are indicators that they might not be that happy with him these numbers. When you look at some of that -- because you look at the fact that President Trump won by 28 percent, he's not looking as strong in this. And also, people are saying that he's not as much as a factor in their decision, even though, you know, he interjected himself to some extent.

We've got to leave it there. Charlie and Zac, thank you very much, guys. We'll be watching closely. Exciting night. So, we're keeping a close eye on this race, of course. And the polls are set to close less than an hour from now. We've got a Karl Rove and Chris Stirewalt, they are coming up with their predictions and the potential fallout. What happens? You know, what in the Senate? What happens on the Hill when one of these men win this Senate race tonight in Alabama? And we're going to have some information and some numbers coming in very soon.

So, then, a growing list of Democrats rallying behind Senator Kirsten Gillibrand and her demand that President Trump resigns from office. No surprise, the president punched back on Twitter today and he has been called a sexist for what he said. But is he? Based on the things he has said in the past? Molly Hemingway and Wendy Osefo on whether the media outrage matches the mood of the American people out there when we come back.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: -- including some of the things that it's about sexual innuendos.

SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: I think only if your mind is in the gutter would have you read it that way.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MACCALLUM: So, tonight, a growing list of Democrats calling on President Trump to resign now that the women who accused him have resurfaced. The charge is being led by New York Democrat Kirsten Gillibrand. She's a fierce critic of President Trump. She a one-time friend of Bill and Hillary Clinton. But she recently bailed on that relationship. And no surprise, the president punched back, which is what he does. And his response to Senator Gillibrand got a lot of his critics fired up. Trace Gallagher has the story behind the feud for us tonight. Hi, Trace.

TRACE GALLAGHER, FOX NEWS CHANNEL: Hi, Martha. The back and forth began when Kirsten Gillibrand went on television and became the fifth Democratic Senator to call for President Trump to step down amid allegations of sexual misconduct. Watch.

(BEGIN VIDEO CLIP)

SEN. KIRSTEN GILLIBRAND, D-N.Y.: These allegations are credible. They are numerous. I've heard these women's testimony, and many of them are heartbreaking.

(END VIDEO CLIP)

GALLAGHER: President Trump fired back with an early morning tweet, "Lightweight Senator Kirsten Gillibrand a total flunky for Chuck Schumer, and someone would come to my office begging for campaign contributions not so long ago and would do anything for them is now in the ring fighting against Trump. Very disloyal to Bill and Crooked-USED." The president never explains what he means by the phrase "would do anything for them," but The Washington Post and many others quickly concluded the tweet was sexually suggestive. Massachusetts Senator Elizabeth Warren took it even further, tweeting: "Are you really trying to bully, intimidate and slut- shame Senator Gillibrand? Do you know who you are picking a fight with? Good luck with that." But during the White House briefing, Sarah Sanders disputed any characterization that the president's tweet had a sexual connotation. Listen.

(BEGIN VIDEO CLIP)

SANDERS: That comment, frankly, isn't something new. If you look back at past comments that this president has made, yes, he's used that same terminology many times in reference to men. There's no way that this is sexist at all. I think only if your mind is in the gutter would have you read it that way.

(END VIDEO CLIP)

GALLAGHER: And Sarah Sanders is right. Trump has used the "would do anything" phrase a number of times against people like Ted Cruz, Jeb Bush, and others. Today, the president ignored a reporter's question about the tweet, but Senator Gillibrand responded, quote: "You cannot silence me or the millions of women who have gotten off the sidelines to speak out about the unfitness and shame you have brought to the oval office." Gillibrand, for the record, has gotten donations from Donald Trump in the past and reportedly did meet with Trump in his office back in 2010, but Ivanka Trump was apparently there the entire time. Martha?

MACCALLUM: Trace, thank you very much. Here now with more: Mollie Hemingway, Senior Editor at The Federalist and a Fox News Contributor; Wendy Osefo is Professor and Political Commentator. Welcome, good to have both of you with us tonight. You know, Molly, let me start with you, what do you make of this back and forth?

MOLLIE HEMINGWAY, FOX NEWS CONTRIBUTOR AND SENIOR EDITOR AT THE FEDERALIST: It's just incredibly stupid. I mean, Donald Trump is not a subtle person and if he wanted to say something overt, he would say. And he's used this language and this terminology against Jeb Bush, against Ted Cruz, the entire club for growth. He used to make it a staple of his campaign rallies to mock Mitt Romney, saying he would get down on his knees and beg for cash.

This is actually pretty standard politician rhetoric to say that politicians will do anything for money. And I don't think we've frequently characterized that rhetoric referring to sex, particularly when there's such a, you know, available political explanation. Kristen Gillibrand is someone who used to have an A rating from the NRA, and now she has F rating.

She used to be friends with Bill Clinton, she used his support and money, and then she turned on him recently to condemn him. And she used to be someone who opposed amnesty, and now she's threatening to shut down the government if there's not a DACA fix. So, this is not someone who's known for her consistency.

So, the claim that politicians will do anything and they're opportunistic - - this is pretty standard claim to make. And I don't know why people feel the need when a normal criticism would due. You know you could say, it's not good for a president to be insulting this way or this is not presidential. Why people go to this extreme rhetoric of coming up with outlandish things to say about it?

MACCALLUM: Wendy?

WENDY OSEFO, PROFESSOR AND POLITICAL COMMENTATOR: Sexually suggested behavior does not just go to one sex. So, the comment that she said it to men, that's completely fine. It does not negotiate the fact that this comment was inappropriate. And furthermore, in this climate of the me-too movement, where we're having people who are being, you know, really attacked through the use of sexually suggestive commentary, this is not warranted.

Furthermore, this the same president who said that he grabs women by the genitalia. This is the same president that said a journalist is bleeding from her you-know-whatever. And the same president that also said that you know what? I would never harass those women because they don't look good enough for me.

The truth of the matter is, when someone shows you who they are, you have to believe them. And based on his approval rating, the American people believe that he makes comments that are below the office of the presidency. And furthermore, he has no place at 1600 Pennsylvania Avenue. So, is he morally bankrupt and he is a bully? And for anyone who says that these comments were not linked --

MACCALLUM: But, I mean, do you -- are you open to the idea, in all of this as we look across all these cases that there are times when someone might be falsely accused? Do you allow for that in any way?

OSEFO: That's not the point of what he was saying -- that's the thing. If he had never shown any behavior like this. And, of course, we're overreacting, but that's why I just gave a list of things that he has done. If this just came out of blue, of course, we could be jumping to conclusions. But he has shown this time and time again that he does bully people, that he does make things an issue when it comes to issues of sexual misconduct.

MACCALLUM: Let me give Mollie one quick change, and then I have got to go.

HEMINGWAY: Yes. There is this other issue, which is Democrats really are upset with Kristen Gillibrand. They think she kind of ginned up this outrage mob and took out Al Franken. So, pointing out her opportunism, you know, that this is someone who changed her position on the importance of this issue at the time when the time was just right. That's a hit against her that you're going to hear from both left and right.

MACCALLUM: All right. Thank you very much. Good to see you both tonight.

HEMINGWAY: Thanks.

OSEFO: Thank you.

MACCALLUM: So, we are watching the Alabama race very closely. We do expect we're going to get some percentages rolling in shortly. And it's obviously a bitter fight -- this is Jeff Sessions' open seat when he went to become the Attorney General for President Trump. Very close tonight. Very close. Karl Rove, Chris Stirewalt with the numbers; what they make of them at this point. That's coming up.

And with the conflict of interest piling up in the Trump-Russia probe, we've detailed them quite extensively over the course of this week. A new question: do we need a special counsel to investigate the investigation? Team Trump is saying yes on that. Constitutional Law Expert, Jonathan Turley, on what he thinks about that prospect from D.C., coming up straight ahead.

(COMMERCIAL BREAK)

MACCALLUM: There is new fallout this evening from Robert Mueller's Russia investigation. In recent days, we have reported on a series of troubling reports involving members of Mueller's team who are clearly not fans of the president, bringing in to question whether or not they're impartial enough to be on this investigation. So now, a top member of the president's legal team says what's needed in his mind is a second special counsel to keep an eye on, to oversee the investigators. Jay Sekulow told Axios: "The Department of Justice and FBI cannot ignore the multiple problems that have been created by these obvious conflicts of interest. These new revelations require the appointment of a special counsel to investigate, he writes. Jonathan Turley is constitutional law expert, and George Washington University law professor, and good friend of the program. Jonathan, good to see you tonight. Great to have you with us.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW PROFESSOR: Thanks, Martha.

MACCALLUM: So what do you think about that? Should he do that?

TURLEY: Well, I totally agree with the need for a serious investigation. I find the allegations involving the dossier and the fusion effort to be deeply troubling. I mean, there are false statements that have been made. There're serious conflicts of interest. Having said that, I would not recommend another special counsel, this is the type of thing that congress can and should investigate. They have jurisdiction over the Justice Department. This is a core concern of whether the Justice Department acted through politically motivated means or purposes. Now, that can change depending on new disclosures. It can also change if the Justice Department continues to refuse to give information to congress. I said for years that these committees need to enforce their contempt authority and to start holding these officials guilty of contempt.

MACCALLUM: I mean, it's really unbelievable. You kind of feel bad for members on these committees on the hill because ever since Benghazi they request documents. They nicely ask for them. Now they're doing it here. They have requested many documents with regard to the dossier, whether or not the dossier was used as a precursor or to lay the groundwork for the investigation. They can't seem to get anywhere with getting answers from the FBI on any of that. And then you look at, you know, the different characters that are playing roles in this investigation, and the myriad, starting with Bob Mueller and his relationship with James Comey and on down. Andrew Weissmann is starting to look like a team of people who, you know, are obviously very smart. Obviously have, you know, wonderful degrees. They're attorneys of great repute. However, their own actions make it appear that they cannot be impartial in this case.

TURLEY: Well, I think that's the problem we're seeing emerge is that the conflicts are becoming more the rule than the exception in these investigations. I have no problem with spending millions of dollars, spending copious amounts of time on these investigations. One thing I don't want is at the end for there to be lingering doubts as to whether any of this matters because of conflicts of interest. And so I think we seriously have to look at that, the Justice Department, seriously, has to look at it. Right now, the integrity of the Justice Department is at stake, and they're not doing much to correct it.

MACCALLUM: But who can do that? I guess that's the question, because if the house committees who have the jurisdiction as you point out can't get the information that they want, it's no wonder that Jay Sekulow says maybe we need somebody on the outside.

TURLEY: Well, that may, in fact, be the only outcome unless they force this issue. I've testified before that congress needs to enforce contempt authority. And I have to say to the credit of the Republicans in the house, they are thinking of holding officials in the Republican administration in contempt. That would be the first time in modern times to have a party holding its own administration to account. That would be a good development, given the rather checkered history of contempt of agencies in dealing with congress.

MACCALLUM: Great point. Jonathan Turley, thank you as always. Good to see you tonight.

TURLEY: Thanks, Martha.

MACCALLUM: So we are just moments away now from the polls closing. I know we say that a lot, but we really are just moments away. We're going to start getting some numbers in from this race. It's very, very tight. I mean, you go through these exit polls. You look at the numbers. You look at the recent polling before everybody walked in there. But you just have to ask yourself are people talking to these pollsters? Are they telling the truth about their feelings about all of this? So what happens if Roy Moore wins? What happens if Roy Moore loses and Doug Jones wins? Marc Thiessen, Karl Rove, Chris Stirewalt, all coming up with what that will mean tomorrow for the outcome of this race.

UNINDENTIFIED MALE: Well, I'm coming to the senate and we'll work out our problems there.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MACCALLUM: So minutes from now, the poll will close in Alabama in one of the most unpredictable races in recent history will come to an end, we think, if there is a resolution to that. It's a state where President Trump won by 28 points in November. Leaving many Republicans to fear that they could lose another crucial seat in the senate slimming that majority to 51. And you've seen how tough it is at 52. So, Roy Moore could write a victory tonight or else he could not. Those are the two options that we're dealing with here tonight, folks. So will they send a Democrat senator to Capitol Hill for the first time since 1992. Fox News is live at both the Moore and Jones camps tonight. But first, Karl Rove, former deputy chief of staff to President George W. Bush and a Fox News contributor, and Chris Stirewalt, Fox News politics editor. Gentlemen, welcome. Good to see both of you tonight.

CHRIST STIREWALT, FOX NEWS POLITICS EDITOR: Howdy, ma'am.

MACCALLUM: Karl, put on your prognosticator hat, tell me what you think is going to happen here tonight? What does it say about Alabama voters?

KARL ROVE, FOX NEWS CONTRIBUTOR: Yeah. Well, first of all, I'm disappointed Stirewalt is not in Washington. So I'm hanging out in his office down here.

ROVE: Look, this is going to be Jefferson county and the 13 black belt counties versus Birmingham suburbs, north Alabama, and the wire grass, and then one of the areas that's going to be really critical tonight is what happens in southwest Alabama, down near Mobile. And the exit polls are pointing to this thing being tighter than a tick. You know, as thin a margin as lead to mechanical pencil. If the Democrats win this race it's going to be a commentary on the quality of the candidate nominated. It's not going to be a comment on the president. If Doug Jones gets elected, it's going to be in spite of the fact that he opposes the president and the president's agenda not because he opposes the president and his agenda.

MACCALLUM: All right. I always -- I'm fascinated when we talk about the changing character of these states as you go through these electoral cycles, right? And you do have sort of increasing population, some of these suburban areas in Mobile, in Birmingham. You have suburban voters who may be, sort of, feeling differently about things than they did four years ago, 10 years ago. Chris, characterize for us who you're watching tonight, and who you think is going to make the difference here?

STIREWALT: So Birmingham suburbs are huge here because Donald Trump is still very popular in Alabama. And he would no doubt win by a similar margin if the election were litigated again today. But, for Alabamians the question here -- and this is what Doug Jones has really focused on which is don't embarrass your state. Alabama has only recently outrun the George Wallace years and the unfortunate memories that Americans associated with Alabama about the segregation era. And what basically Doug Jones is saying to the state is, look, we've been on the up and up for a long time here. Let's not do something that's embarrassing for the rest of the country. Let's do it for state pride.

MACCALLUM: Not only Doug Jones, Richard Shelby saying the same thing.

STIREWALT: Yeah, exactly.

MACCALLUM: The Republican senators -- senior senator from the state of Alabama. Let's look at some of these numbers. Let's pull up this one which asks personal morality how important is that to your vote. Jones voters 57 percent. Moore voters 40 percent. Let's go to the next one as well. Do you believe the allegations against Roy Moore are true, 50 percent say yes, 44 percent say no. And then one more is a Trump look, favorable opinion of Donald Trump, 51 percent -- I mean, the rest of the country is at what, 32 right now.

STIREWALT: Right, this is robust.

MACCALLUM: So what do you take away from these Fox News voter analysis?

STIREWALT: What I take away is that we have people who have made a decision. We're talking to a lot of people who have made a decision that Roy Moore is not the guy. I have to agree with Karl Rove enormously, which is this isn't a referendum on Donald Trump in any way, even though he kind of made it about himself. He kind of got down there. Look, it's not going to be good for his clout in dealing with other Republicans around the country in terms of I come in and change the outcome of a race. It isn't a referendum on Trump.

MACCALLUM: And he never said I really like Roy Moore, he said I need Roy Moore. He said I need Roy Moore to get my agenda through. That was his way of characterizing his support here. But you know what else is interesting to me, Karl, is that Republicans in general they didn't really love this candidate even before this whole thing came out from the Washington Post with allegations.

ROVE: That's right.

MACCALLUM: I mean, this is not someone that Mitch McConnell said the world were in support of, even before any of this stuff happened.

ROVE: Well, and Alabamians weren't wildly enthusiastic about him. If you go back to 2002, Republicans have won statewide contested-statewide races by an average over 20 points. And they began -- in fact in the last couple of elections there's been statewide candidates in which the Democrats haven't even put up somebody. But in 2012, when Roy Moore ran for re- election to the Supreme Court, he'd been tossed off in the early 2000's. He ran for election in the Supreme Court in 2000. Mitt Romney is winning the state with 25 points. And Roy Moore gets elected to the chief justice slot by 4 points over a relatively unknown district court judge from Birmingham, from Jefferson County. So, he wasn't popular in the state before. He's lost a number of statewide primaries before. But this year, the sort of the forces of populism and some local issues the president -- the governor of the state was forced out of office. And he was the guy who appointed Luther Strange as U.S. senator. So, some of the stink that accompanied the governor being ousted from office unfortunately hung on to Luther Strange.

MACCALLUM: I'm amazed watching, you know, a lot of these -- the women in the state, Chris, you know, saying, look, we don't like to be told what to think. We listen to Roy Moore. He says he didn't do it and we believe him. These are 40 years ago. He does have support among, you know, some pox of the conservative women. We'll see how many, I guess.

STIREWALT: He's going to have hundreds of thousands of votes tonight. It's not like -- if he loses, it's not like he's going away from this empty-handed. But I do think this, and I think this is something that Republicans have to think about going forward into 2018. Whatever comes out of this, this has been a colossal waste of time and money for the Republicans and reputational harm. They didn't need to have Roy Moore as their nominee there. If they could have found a way to try do Luther Strange or some other candidate we wouldn't even be covering this tonight. It would just be a blip, a technicality.

MACCALLUM: Thanks, guys. Good to see you. We'll be watching with your help as we go through the evening tonight.

STIREWALT: You bet.

ROVE: And I'll be enjoying Stirewalt's office the rest of the evening.

(LAUGHTER)

MACCALLUM: That bottom drawer in the file cabinet. All right. Thanks you guys. So when we come back, what happens to the all-establishment Republicans who spoke out against Roy Moore if he actually wins? Marc Thiessen here on that next.

(BEGIN VIDEO CLIP)

STEVE BANNON, BREITBART: There's a special place in hell.

(APPLAUSE)

BANNON: . for Republicans who should know better.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MACCALLUM: So about 15 minutes from now, we will get to -- see some numbers coming in from this really important senate race. The first senate race since Donald Trump was elected president. So we'll see who wins between Roy Moore and Democrat Doug Jones, and it has been described really as strange, ugly, what a weird race this has been, right? If Roy Moore wins tonight he's already facing a daunting challenge to try to win over the members of his own party.

(BEGIN VIDEO CLIP)

UNINDENTIFIED MALE: I think Roy Moore is an abomination to the Republican Party.

UNINDENTIFIED FEMALE: I'm disappointed that the RNC has resumed its support of Roy Moore.

UNINDENTIFIED MALE: Step aside and allow another Republican to get into that race.

MACCALLUM: And Steve Bannon at a rally last night had a message for those Republicans who refused to get behind Moore.

(BEGIN VIDEO CLIP)

BANNON: To Mitch McConnell, and Senator Shelby, and Condi Rice, and all that little Bobby Corker, all the establishment up there, there's a special place in hell.

(APPLAUSE)

BANNON: . for Republicans who should know better.

(END VIDEO CLIP)

MACCALLUM: Wow. Here now, Marc Thiessen, an American enterprises chief scholar and Fox News contributor. Marc, good evening. Good to have you with us. You know, he gave a, sort of, a knowing nod as he said there's a special place in hell because, obviously, it's a phrase that used, but it was a phrase that was used by Ivanka Trump. And she said there's a special place in hell for people who prey on children.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Yeah. That's quite remarkable that he would take that shot at the president's daughter. I don't know that Donald Trump would appreciate that. But there's also a special place in hell for Republicans leaders who should know better than to back an alleged sex predator for the United States senate, and that is what Steve Bannon has foisted on the people of Alabama. I mean, pity the poor people of Alabama who have been going into the voting booth today with the horrible choice, because this is one of the most pro-life states in the country, of choosing between a radical pro-abortion Democrat who basically supports abortion on demand, and a person who's credibly accused of molesting teenage girls. No voter should ever have to face that decision. But Because of Steve Bannon and the alt right movement, they're stuck with that choice. And he should be ashamed of himself.

MACCALLUM: Yeah. I mean, well, Steve Bannon helped him get through the primary, clearly, you know. I think the Roy Moore folks will say he came in late to the game, but he did help him get through the primary because President Trump backed Luther Strange and wanted him to win. And when he didn't, that was when he kind of -- you know, sort of -- was forced to kind of warm up to the Roy Moore idea and he wanted to get -- help him push his agenda through. So this will be a referendum on a number of things. Sexual harassment charges, whether or not you can push back against him and win. It's going to be one thing we're going to learn. And also on Steve Bannon on whether or not his involvement in these races is a plus or a minus.

THIESSEN: Well, it's clearly a minus. And, look, Steve Bannon is trying to replicate this across the country. He's threatened every single Republican incumbent except for Ted Cruz with similar primary challenges. And so, what we're doing basically here is we are replicating -- I don't know how it's going to come out, but if -- you know, let's say Doug Jones wins and Steve Bannon accomplishes the great feat of getting a Democrat elected in the state of Alabama, we're replicating 2010 when you have.

MACCALLUM: Well, what if Roy Moore wins?

THIESSEN: Well, if Roy Moore wins then it's an interesting situation. So like in the United States senate, he's going to be seated. He's going to be sworn into office. He's going to assume all the committee positions that Jeff Sessions and Luther Strange had before him. He's going to be on the armed services committee, the budget committee, the energy committee, the ad committee, and he's going to have influence.

MACCALLUM: Well, Marc, if he wins, that's what the voters in Alabama want.

THIESSEN: Yeah. That's the reality the Republicans are going to have to face. They don't have to have lunch with him. They don't have to co- sponsor legislation with him. But he's going to have influence.

MACCALLUM: Thank you very much, Marc Thiessen, always good to see you. Alabama polls set to close moments from now.

(COMMERCIAL BREAK)

MACCALLUM: High stakes tonight. Highly controversial contest that will come to a close, we anticipate, this evening at some time as the voters go to the polls and make their feelings known about who they want to be next senator from Alabama. Welcome back, everybody, I'm Martha MacCallum.

BRET BAIER, FOX NEWS ANCHOR: And I'm Bret Baier. There are major implications for both parties tonight as the reliably red state of Alabama could elect its first Democrat in two decades, and the Republican majority could be whittled down to a slim one seat majority.

MACCALLUM: There's a live look at both of the campaign headquarters tonight, the Republican Roy Moore and the Democrat Doug Jones. Rocky road for the Moore campaign, as you know, unless you've been under a rock for the past month or so. But he was derailed by some allegations of sexual misconduct with underage girls.

BAIER: Roy Moore, of course, denies any wrongdoing. But many establishment Republicans withdrew their support. President Trump, however, never wavered saying a vote for Roy Moore is a vote to further the Republican agenda.

MACCALLUM: So Democrats seized on those allegations in an effort to energize their base. Former President Barack Obama, Vice President Joe Biden, Senator Cory Booker, all flooded the area with robocall and went down and helped get over the finish line. So the big question tonight, will the accusations be enough to take down a Trump backed candidate and potentially turn a reliable red-state blue?

BAIER: I mean, just that would be a major thing. We're talking 25 years since a Democrat really won a statewide race. And you have a question of turnout, a question of which side is more fired up. But you get the sense that the Democrats had some internal polling suggesting that maybe they had a shot this time. That maybe this was the time because they sent in Cory Booker. They sent him all kinds of national figures.

MACCALLUM: And in many ways that possibility became more of a potential reality for them as soon as Roy Moore secured the nomination even before these allegations came out. It was a tougher road for Roy Moore. He has had a lot of controversial statements in his background, and there was some concern about it. But after these allegations dropped and he started to see his own party turning on him right and left, you had sort of a pile on. But, I'm always struck by the people in Alabama who really want to be independent on this and they say, don't be telling us who to vote for.

BAIER: And what did they tell pollsters? What did they tell the people? Did they say maybe I'm not going to vote, and they do? There's a lot of questions that we will know in 16 seconds as the first raw numbers start coming in.

MACCALLUM: Look at those big boards. And it's counting down, and we will try to get those percentages rolling on the bottom of the screen momentarily. And we will be joining you throughout the evening. Coming up next, and right now our friend in D.C., Tucker Carlson.

BAIER: Tucker?

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